Emails: General Warned Against Reversing Verdict

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Stars and StripesBy Nancy Montgomery

Brig. Gen. Scott Zobrist didn’t mince words.

The commander of the 31st Fighter Wing at Aviano Air Base, Italy, was concerned that his boss might reverse the dismissal from the service of Lt. Col. James Wilkerson, fighter pilot and wing inspector general, who had worked for Zobrist until a jury convicted him of sexually assaulting a sleeping houseguest.

In an email to Lt. Gen. Craig Franklin, Zobrist wrote that he understood that Franklin, as convening authority and ultimate arbiter, might be persuaded to reverse Wilkerson’s dismissal -- as an act of clemency to keep retirement benefits intact for the family.

But still he was against it.

“That would be absolutely devastating in so many ways that I cannot even begin to consider it,” Zobrist wrote in the Feb. 19 email. “Having Wilkerson back on active duty at Aviano, even for one day, would… have a huge negative impact on morale, send a very negative message about how seriously we take sexual assault in the AF, and potentially call into question the effectiveness of our UCMJ system in general.”

“I hope I’m not out of line here, sir,” Zobrist continued, “but … I’m concerned that … reversing the dismissal will have major second- and third -order consequences, here at Aviano and around the USAF.

“Finally, the victim still works at the base and she deserves consideration, too,” Zobrist wrote. “Any change to his penalty will affect her as well.”

A week later, Franklin not only reversed the dismissal, but also tossed out Wilkerson’s sexual-assault conviction. Franklin then, emails show, set to work to get Wilkerson speedily promoted to full colonel, with an assignment of his choice, and to get him flying again.

Zobrist was prescient.

Franklin’s decision to overturn a jury verdict in a sexual assault case became a national story and outraged scores of lawmakers.

In the weeks following his decision, the Defense Department was forced to agree to abolish the longstanding, but rarely used, commanders’ authority to overturn verdicts and placed limits on their formerly unfettered authority to reduce sentences.

Both the U.S. House annual defense bill and the Senate Armed Services Committee’s version of the bill included provisions to strip commanders of their ability to overturn jury convictions -- and other measures such as civilian review decisions to not prosecute cases and mandatory dishonorable discharges in all sexual assault convictions.

Further, Sen. Kirsten Gillibrand, D-N.Y., has vowed to reintroduce a measure to strip commanders of their responsibility to decide which sex assault cases go to criminal trial and give the authority to prosecutors outside the chain of command.

The emails -- from Zobrist, Franklin and others -- were this week posted on the Air Force’s FOIA online reading room after a flurry of Freedom of Information Act requests engendered by the uproar following Franklin’s action as the convening authority in Wilkerson’s court-martial.

They provide a rare public view into what’s usually private correspondence between top Air Force officers in the midst of a public-relations crisis that they seemed to believe they could weather.

Air Force Gen. Philip Breedlove, then U.S. Air Forces in Europe commander, emailed Air Force Chief of Staff Gen. Mark Welsh, saying he fully supported Franklin’s dismissal of the case.

“He and I have discussed in depth the meaning and the possible blowback,” Breedlove wrote. “I stand behind his decision.”

The day after announcing his decision, Franklin was engaged in an all-out effort to get Wilkerson’s career back on track.

“Getting him reunited with is family is the priority for the next few days. Certainly after he and Beth have had a chance to discuss it, we will see what he wants to do next,” said an email Franklin on Feb. 27 sent to Breedlove.

The email said officers were working to get Wilkerson’s security clearances restored and to get Wilkerson, who had been selected to be a colonel before being accused of sexual assault, speedily promoted.

“I intend to get him back to a flying assignment ASAP,” Franklin wrote, and to “reassure him he has a great future and his record is very competitive for OG/CC.” The initials stand for operations group commander.

On the same day, Franklin told Breedlove what he’d heard about Wilkerson’s accuser’s reaction to his decision. “(She) did not take the news very well,” Franklin wrote. “She broke down in tears several times. She said that ... she had humiliated herself over the last several months. She said it was all for nothing.”

Franklin’s stated reason for dismissing the verdict was that he believed prosecutors had not proved the case beyond a reasonable doubt, but the emails made clear that he had no doubt that Wilkerson was innocent. “I am sleeping very well knowing I made the right call and that an innocent man is free,” he replied to a well-wisher four days after dismissing the case.

An Air Force official whose identity was redacted online, in a follow-up email to Franklin on Feb. 27, said it had been learned that getting Wilkerson promoted would be more difficult than was thought. Wilkerson would have to go through an administrative records correction board.

“Disappointing …,” Franklin responded the next day. “Kind of insulting to he and his family after all they’ve been through. The AF can and should do better.”

Franklin said he’d call the head of Air Force personnel directly and asked if he could intervene in the board process.

“A letter from you would certainly carry a lot of weight …,” was the response.

In early March, Wilkerson was being considered for a job at the Air Combat Command at Joint Base Langley–Eustis, Va. He didn’t get it. Zobrist sent an email to Air Force headquarters requesting that Wilkerson be assigned elsewhere, explaining that he was being assigned to the ACC as director of Plans, Programs, and Requirements.

“(A)t a minimum, it would be very awkward for us both … our paths would cross frequently and I know that wouldn’t be good for him or me, ” Zobrist wrote.

Victims’ advocates and lawmakers made their displeasure with Franklin’s decision known immediately. Six days after the ruling, on March 4, Sens. Barbara Boxer, D-Calif., and Jeanne Shaheen, D-N.H., sent a letter to Defense Secretary Chuck Hagel demanding to know how and why Franklin was authorized to dismiss a jury verdict, which they called “a travesty of justice.”

“In addition, we urge you, in the strongest possible terms, to take immediate steps to restrict Convening Authorities from unilaterally dismissing military court decisions,” the letter said.

More letters from lawmakers followed, demanding investigations and castigating Franklin. Sen. Claire McCaskill, D-Mo., urged Air Force leaders “to undertake an immediate review of his conduct and consider removing him from his leadership position.”

Franklin, meanwhile, emailed Wilkerson on March 5. “Let me look into the security clearance issue and see what I can do to fix it. How about we schedule a call for this Friday … and I’ll have an update on that by then as well as my thoughts on assignments.”

It was the same day he’d received an email from Col. David Walker, commander of the 31st Operations Group and Wilkerson’s former boss, who testified for him at his court-martial.

Wilkerson “wanted me to convey to you his promise that there is no adverse information to his knowledge outside the charges brought against him in court,” Walker wrote. “He is ready now to talk with you if your offer still stands for advice on assignment and the way ahead.”

On March 7, Hagel told lawmakers in a letter that he believed the case raised “a significant question whether it is necessary or appropriate to place the convening authority in the position of having the responsibility to review the findings and sentence of a court-martial. …”

The next day, Franklin sent an email to cancel his planned phone call with Wilkerson. He said that any communication with him about his career might be “misinterpreted.”

On March 11, Franklin emailed Air Force Chief of Staff Gen. Mark Welsh and Breedlove with a draft of a memo he was considering sending to the Air Force secretary that detailed why he’d overturned Wilkerson’s verdict reached by the five-colonel court-martial panel in November.

Franklin told Welsh that he was concerned his memo might find its way to the Internet and set an unwelcome precedent for commanders having to explain their actions in disposing of criminal cases. “Thanks Craig -- just to be clear on this there is NO DOUBT in my mind that this will indeed find its way outside the Pentagon and be available on the internet, in the media, in Congressional commentary, etc. … It would be discoverable by Committee chairs on the Hill, along with the rest of the case file and it will undoubtedly be leaked,” Welsh responded.

Franklin’s memo, released in early April, had also included his doubts that Wilkerson, an apparent family man and fine officer who’d been selected to be a colonel, would commit sexual assault, particularly in his own home with his wife and child nearby.

Two weeks later, the Air Force was investigating whether Wilkerson had years before, when he was a major, engaged in an extramarital affair that produced a child. In June, the Air Force confirmed that he had.

That investigation was also posted online this week. It concluded that in addition to having committed adultery, Wilkerson had apparently misused government resources. "[G]iven his position, and the appearance of the use of government resources (an F-16) to facilitate the adulterous encounter while on a TDY, I have concluded this conduct is of a nature to bring discredit on the armed forces,” according to the unnamed investigator who wrote the report.

Wilkerson was assigned to be the 12th Air Force chief of flight safety at Davis-Monthan Air Force Base in Tucson, where he remains on duty as a lieutenant colonel, according to officials.